Executive Power v. Coronavirus

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Practice Groups, was recorded on Friday, March 20, 2020, during a live teleforum conference call held exclusively for Federalist Society members.

 

Dean Reuter:  Welcome to The Federalist Society's practice group teleforum conference call. This afternoon’s call is about executive power in the Coronavirus era. My name is Dean Reuter. I’m Vice President and General Counsel of The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the experts on today's call.

 

      Today we are happy to welcome two repeat return guests: Professor John Yoo, Berkeley Law School, and John Malcolm of the Heritage Foundation. We’re going to have about 30 minutes of opening remarks and discussion between the two of them, but then as always, we’ll be looking to you for your questions, so please have those in mind for when we get to that portion of the program. With that, Professor Yoo, the floor is yours.

 

Prof. John C. Yoo:  Dean, thank you. And thank you to The Federalist Society for sponsoring another episode in a series I’m so pleased to do with John Malcolm on presidential power during these turbulent times. First we thought we were done when the Mueller report was done. Then we thought we were done when impeachment was over. But now we’re back because we’re seeing, I think, some of the broadest expressions of presidential power now during this coronavirus epidemic. I think we’re going to talk today not just about executive power at the federal level but executive power at the state level because it’s my take that a lot of the policies that will determine whether the nation successfully responds and recovers from this pandemic are going to be actually up to the states and not the federal government and not President Trump.

 

      But let’s start out with a discussion of what President Trump’s been doing. As I think many people have seen, President Trump I think initially did not react to the pandemic with the vigor and energy that rests in the Executive. But in the last week, week and a half, he has responded vigorously. He has invoked the Stafford Act, which has allowed him to tap into $50 billion of emergency funds for disaster relief. He’s also invoked the Public Health Service Act, which allows him through the Department of HHS to take measures necessary to stop the spread of the disease from abroad or in interstate travel. He’s even suggested that he might use the Defense Production Act, which allows the national government, essentially, to nationalize parts of private industry to require the production of materials, such as masks, drugs, hospital equipment and supplies to address a national emergency or war. The Defense Production Act is rarely used, and is quite the expansion of federal power. Plus, the President and Congress are negotiating for a $1 trillion stimulus bill, which they hope will put thousands of dollars in the pockets of each American within a few weeks.

 

      My general take on this is is that actually what the pandemic is showing are the limits of presidential power. President Trump has not claimed any inherent authority under the Constitution to do any of the things he’s doing. I think  actually it’s ironic that people have been attacking him for the last three years for excessively using presidential power, for tearing down the Constitution, for going beyond Article II limits. And now we have seen for the last month people demanding that the President do more, that the President solve the epidemic.

 

      What this shows, however, is that there are real limits on the federal government and on the President when it comes to domestic affairs that don’t apply in foreign affairs where the President has much more constitutional freedom because of his authority as Commander in Chief and as Chief Executive. When it comes to domestic affairs, he is acting primarily pursuant to powers that have been delegated to him by Congress. For example, the Stafford Act and the Public Health Service Act require the President to declare a national emergency before he can tap money or to find that there’s some kind of disease outbreak that’s occurring. And it doesn’t allow the President to, for example, enforce a nationwide quarantine despite rumors to the contrary that have been spreading on the internet.

 

      Further, federalism imposes something of a restriction. You’ll notice when I describe the Public Health Service Act I mention that it really only allows the federal government to stop the spread of disease across borders. It seems to me now that the epidemic has reached every state as it did in the last week, that you're seeing large numbers, now, start to rise in some of the more populous states within those states, like California and New York. The problem isn’t about interstate travel anymore. It’s going to be more about person to person, community level, granular enforcement of efforts to try to stop the spread of the disease. And that under these laws is wholly in the hands of the states, which is where I think the Constitution leaves -- people might be shocked to learn the Constitution does not contain a clause saying that the federal government has the power to stop epidemics. There is no such power. The Commerce Clause and the Spending Clause are really what the federal government can use here. And it is using that.

 

      So I think I’ll stop by just noting that Trump, at this point now, I think he had a faltering first steps. He is I think now pressing the delegated powers to their limits. I think he’s really vigorously now responding by trying to send billions of dollars by talking about transferring military resources to the epidemic fight, by trying to stop travel in and out of the country, by trying to accelerate the spread of information, research, and even the approval of drugs and vaccines. And potentially taking over parts of the economy to produce medical equipment rather than Teslas down in Fremont, which is just about 30 minutes from where I am. But there’s not a whole lot more that the President can do, unless we saw something much more serious occur such as the breakdown of law and order in cities, a collapse of local governments, and even then, even then, the President would still need to rely on the requests of state governors for assistance before he could intervene.

 

      And so I think that, yes, some of the criticism of President Trump is justified. But some of the limits, some of his failures to respond are not his failures; they are instead the working of our federal/state balance in our constitutional system of government.

 

      So with that, I’ll turn it over to John. John, in fact, there’s some libertarians who’ve gone far -- first, I’ll ask if you agree with my take on it. But also, there are critiques, libertarian-conservative critiques who think the government is going too far, that claim that these measures we’re seeing are, as Judge Napolitano, for example, at Fox News put it, it constitutes a government assault on our freedoms and violation of the Constitution. So John, what do you think of all of this?

 

John G. Malcolm:  So while I agree with everything you said, John, and these are certainly very interesting times, and there’s no question that when we undergo national crisis—and this is now an international crisis—is when you get strains put on the Constitution. And Judge Napolitano reacted to the fact that restaurants being closed, people are, where you are, being ordered to shelter in place. Now the whole state of California, not just the six counties in San Francisco, they're all going to shelter in place. And Governor Cuomo is doing something similar in New York. Governor DeSantis even had the audacity to send spring breakers home from their foolishness on the beach, ignoring all of the warnings to gather in places with 10 or more.

 

      There’s no question that there have been times in our nation’s history when we’ve had crisis where people have stepped over the line and infringed on our constitutional rights. Korematsu with the internment of Japanese-Americans certainly being a very, very prominent, if not the most prominent, example of what’s going on here. But it’s really interesting to watch all of these pieces move so all of the authorities that you talked about, the Defense Production Act the Stafford Act, the Public Health Service Act, those are pretty broad authorities. But they are authorities that came not from a unilateral exercise of constitutional authority by the Executive Branch. And he has Commander-in-Chief authority. But these were all passed by Congress, which has constitutional authority over foreign and -- commerce with foreign nations, commerce between the states. And that is where the President is drawing on those.

 

      Some of these like the Stafford Act have been utilized dozens of time whenever there’s a national disaster. And national disaster -- the Stafford Act has been amended several times to expand the definition of a national disaster. Others of them, as you rightly point out, are rarely used, like the Defense Production Act. That enables to the government to basically commandeer private industry to the extent of saying that government contracts take priority over any other private contracts, both in terms of manufacturing of goods and also the procurement of raw materials.

 

      But President Bush, for instance, George W. Bush in 2004 invoked that act apparently to get the material necessary to product body-piercing armor and armor placed from mine-resistant vehicles for the war in Iraq that were in short supply at the time. And here it’s being used for things like respirators and ventilators, and he even says that the military is going to transfer some masks and ventilators. And he’s making Navy ships available as possible hospital units. All of these are being done according to acts that the President -- that Congress has passed and given that power to the President. And the Tenth Amendment reserves all of the police powers within the states to the states themselves. And governors certainly are making very robust use of that. And they certainly do impinge on people’s freedoms. But there is a lot of precedent out there to support what it is they're doing.

 

      So, for instance, the Tenth Amendment police power -- and this we do routinely, people don’t really think about it. The states order health inspectors to go into restaurants to do routine inspections, even if the businesses don’t want the health inspectors there. It’s the same thing that we have at our ports and our airports. Federal authorities walk around with dogs, and they're measuring cargo and plants and crew members and passengers who are coming to see whether there are any health problems. So we’re used to those little examples of the exercise of the same kinds of authority that do limit our ability to say no, you can’t come into this restaurant or no, you can’t search my bag. But now it’s moved on a far broader scale, where people are being quarantined as they enter our country. And governors are ordering restaurants to shut down.

 

      The Supreme Court has actually weighed in in a couple of cases that tested both of these. So the first one of these cases, which tested the authority of states to enact measures like this, was a 1905 case, Jacobson v. Massachusetts in which Henning Jacobson, who was a pastor and a community leader, he had been subject to a mandatory vaccination regime in his original country of Sweden. And when he came here, he said he didn’t want anything to do with it. Massachusetts was having a large outbreak of small pox – at the time a certain very deadly disease. And the legislature had passed a mandatory vaccination law for all adults, subject to criminal penalties.

 

      Henning Jacobson said, “I’m not going to do this,” and he was prosecuted and given a rather hefty fine. And he filed a lawsuit challenging the constitutionality of this saying that this invaded his bodily integrity. And the Supreme Court, by a 7-2 vote, rejected that argument and said basically the community’s got a right to protect itself against an epidemic of life-threatening diseases. And that can include forced vaccinations. So that was a case on all fours, really, with this situation with respect to state authority.

 

      And then a few years later, Congress passed a mandatory date of compulsory draft, and that was a challenge by people saying, “You’ve violated the Thirteenth Amendment because you're literally taking your services and sending you overseas.” And the Supreme Court, in what’s known as the Selective Draft law cases in 1918, unanimously rejected that and said, “No, there are times when we can actually compel you to go do something even if it puts you in harm’s way because of the good of the nation.”

 

      So there is Supreme Court precedent for the state exercises of authority and federal exercises of authority. And yeah, these are tough times. But we are really seeing the Constitution in action. I will add there are -- the Constitution, of course, still prevails, and there are some local officials, like this one official I think in Illinois who has tried to ban the sale of all guns and ammunition using this crisis in order to do that. That may very well go beyond what’s a reasonable regulation and necessary to protect the general welfare, and may very well infringe upon Second Amendment rights. So not all of these powers that are being exercised will comport with the Constitution. But so far, most of them have, in my opinion.

 

Prof. John C. Yoo:  Let’s talk about what the state governors are doing. Out here, as you noticed, you mentioned in California, San Francisco had first -- the area where I am has been under basically a lockdown for about a week now. It just forced me to teach classes by Zoom, which I think is pareto-optimal because neither me nor the students have to look at each other in person anymore. So we’re both better off.

 

      But in all seriousness, I think you’re -- now LA followed and then the whole state of California. And now it looks like New York State is following. We expect to see several other states go that route, although because, as you point out of our federal system of government, other states may not. And we can see the results after this is over of which states acted prudently, which ones panicked, which ones overreacted, and which ones may have underreacted. But I think it’s important to emphasize, as you just did, John, that the states have the police power. And for centuries now the courts and our institutions have recognized that the federal government is one of limited enumerated powers, which limits you see in this kind of crisis. But that the states have the general police power to regulate everything in their territory, all conduct, subject to constitutional limits.

 

      And so I thought the interesting thing is not necessarily whether the State of California, the State of New York have the power to essentially enact a statewide quarantine on everybody, but what limits the Constitution places on that exercise of state power. And I think that’s where libertarians like Judge Napolitano and others have erred is just to make a general claim that the state is acting in a totalitarian way without actually identifying exactly what it is that the state can and cannot do. So it seems to me there is one interesting issue.

 

      There’s one non-interesting issue. I think the non-interesting issue is that of course the states are still subject to the Bill of Rights. They can’t, for example, say only Democrats are subject to shelter in place and Republicans can go outside and fire off the AR-15s as much as they like. You can’t enforce the police power in a way that violates the First Amendment or the Fourteenth Amendment and so on. I think that’s an easy thing.

 

      I think the more interesting thing is what you just talked about, John, which is the states have been allowed by the Supreme Court for over a hundred years now to do things like compulsory inoculations. It’s a well-known principle that the state can destroy property in order to stop the spread of a fire, for example. It can, as you say, close restaurants that fail health and safety codes. Those all don’t require compensation under the Takings Clause. The interesting thing is does that principle go so far as to say that business which themselves are not in violation of health and safety codes, people who are not actually sick, that the state can essentially shut all of those down too, not for anything they’ve done, right? The restaurants haven’t done anything. The businesses that are now closed, all non-essential businesses—essentially businesses not relating to food and medicine are now closed—they didn’t do anything. They didn’t violate anything. They were not inherently unsafe or unhealthy. Their destruction or shutting down is not necessary to stop the spread of a fire or a hurricane. It’s because they might be places where people who might have the disease might go and spread it to other people. It’s just a location where they might go.

     

      And the second point then—and this is another restriction—is, of course, there’s this general requirement that the state act rationally. The courts have not really enforced that. That doesn’t mean that it can’t be enforced by the voters and by other institutions of government. Yesterday, Governor Newsom out here was saying we need to put these lockdowns in effect because otherwise 56 percent of Californians are going to get the virus. The state of California is 40 million people. He’s saying, last time I did my math, that’s well over 20 million people he thinks would get the virus. Where did that number come from? In fact, I highly doubt it because how could it be so precise? Some critics have said that the state governments are relying on this study from the Imperial College of London, which claims a very high rate of infection and then death.

 

      The problem with that study, as I understand it, is that it’s based on the Spanish Flu, and our understanding of disease and medicine and mitigating effects was quite primitive then compared to now. They didn’t have antibiotics, and not that antibiotics would work, but think about the panoply of drugs and healthcare that’s available now that was not available at the time of the Spanish Flu.

 

      It could be that the states of California and New York are panicking by relying on beyond worse case, you know, worst, worst-case scenarios. Catastrophic scenarios. And they have to keep in mind that on the other side of the ledger is the economic livelihoods of the 40 million people who live in California or the 30-some million people who live in New York, or 28 million. Whatever. It’s almost 30 million in New York State. The government always has to make tradeoffs in policy. Can we say that the courts or the Constitution, other institutions of governments, like the federal government or other parts of state government, the voters, how can they hold the state governments responsible and force them to make the proper tradeoffs rather than just giving in to panic?

 

John G. Malcolm:  You raise a whole host of issues, and I’ll be the first to admit that modeling projections are not my strong suit. And of course, if you think back to the Spanish Flu, which I found out recently didn’t actually originate in Spain, but I think some member of the royal house in Spain was the most prominent person to get it. So Spain got tagged with the Spanish Flu moniker. That affected, I think it was one out of every three people around the world, and over 50 million people died. And so it’s hard to compare this to that. But of course, there is just an awful lot that is unknown about this virus.

 

      And you're right. We’re going to start testing limits when you start telling people who are perfectly healthy and show no symptoms whatsoever, “You’ve got to stay home unless you are going to a grocery store or doctor’s appointment or a pharmacy.” People are putting up with that more or less at the moment, spring breakers notwithstanding, because the discussion is we’ll quarantine for 14 days, but if all of the sudden this goes on for 7, 8, or 9 months and you end up having 20, 30, 40 percent unemployment and a worldwide depression, how will people put up with that and how will they hold folks, the government, accountable?

 

      I don’t know the answer to that, but that will certainly test authority. And it will raise other constitutional provisions. At some point, as we’ve talked about, the President is the Commander in Chief, with all the authorities for the governor, and for the President for that matter, to call out the National Guard to help keep the peace. Some of these provisions at the Public Health Services Act I believe, for instance, allows governors to request for a limited period of time the assistance of the military to help keep the peace. And at some point, if you ended up having these orders and there was just a mass protest against them and people were just rebelling against these health edicts that are being handed down by the federal government and the state government, could you consider that a rebellion that would enable the President to invoke the domestic violence clause and call out the military? And there are exceptions for putting down insurrections to the Posse Comitatus Act. We’re certainly not there. I don’t expect we will get there. But if this does drag on for a number of months, those provisions could conceivably come to the fore.

 

Prof. John C. Yoo:  I agree with John. I think there is another level of federal power out there and presidential power out there. But as you say, the conditions don’t seem to be close to existing for their call. I’ve wrote a whole book about this, about presidential power in emergencies and crises. Although it was, gosh, I think it came out 10 years ago. Maybe there’ll be a run on it when you get your toilet paper, water, pick up a copy of Crisis and Command. It’s only going to add about .01 cent to your Amazon inbox.

 

      But in that book, I said there are a lot of presidential powers to respond. In fact, this was what the Executive Branch was designed for. This is why the Framers put -- it created the innovation of the presidency, which was non-existent at the time. The Articles of Confederation didn’t have a presidency and didn’t have an independent executive like our president. And the one thing they said repeatedly is because the anti-federalists attacked the Constitution for putting executive power -- concentrating executive power in one person rather than a person with a cabinet or even like two people like the Roman consulate. And their argument was one person having the executive power unified in that way would enhance energy in the Executive. It would lead to what the Framers called speed decision, secrecy dispatch. These are exactly the circumstances for what you would want to see those qualities come forward. A crisis that is unanticipated that Congress cannot, as a legislature with 535 people react quickly, this is when you need the president.

     

      But my argument in the book was that but if presidents try to use this power when there’s no real crisis, they will fail, utterly fail and become sometimes our worst presidents. The problem here is that we don’t yet see the circumstances, I think, for the kind of steps that you're talking about. But they are possible. You could send in the military if there were a complete breakdown of order, although I believe under the Insurrection Act you would still need the permission of -- well, under the Stafford, you need the request of the state governor. Under the Insurrection Act, it’s strange. You need the finding by a federal judge that federal law cannot be enforced in an area. Although these are, in part, the grounds that Lincoln used to justify the Civil War.

 

      And then, as you mentioned, the Posse Comitatus Act is very interesting. It forbids the use of the military for law enforcement. But it does not forbid the use of military for non-law enforcement missions, like protection of federal property, federal installations. And theoretically, the safety of the Republic. Usually, we’ve only see this occur with the Rodney King riots, for example, Hurricane Katrina where the military’s performed almost like a humanitarian role in the latter, or acting to just maintain law and order in the former. And it seems to me, as you said, John, we’re -- that’s a hypothetical that you could see if something really severe happened. We haven’t seen that happen in any other countries that have suffered and some suffered far worse from the coronavirus so far. So hopefully we won’t need the military.

 

      But that would, then, call into question the most severe conflict with individual constitutional rights.

 

John G. Malcolm:  Just a couple of very small points. So one is is that putting down an insurrection is, I believe, a specified exception to the Posse Comitatus Act. And one other thing that we’re not seeing that we have seen throughout the rest of the Trump administration is federalism being asserted in terms of governors and states resisting the President. Sanctuary cities and all of that kind of stuff, and immigration matters of all different kinds. There’re all kinds of allegations that the federal government was trying to commandeer state officials in order to implement federal policy. And lawsuits were being filed all across the nation.

 

      Here, at least so far with respect to this crisis, there appears to be a great deal of cooperation. And that is probably a very good thing since the resources that the federal government can bring to bear, both material and in terms of just information about health concerns and the trends of this virus around the world. They don’t have those resources the federal government does, and at the moment, they appear to be working hand in glove and not at [inaudible 26.27] purposes.

 

Prof. John C. Yoo:  I think this is why we elect these governors and presidents offices to make these tough choices. I think in part it’s a policy question, and I think they must be more transparent than they’ve been about how did they make this tradeoff? I mean, a lot of the things we’re talking about, that you and I, John, are talking about, -- are talking about risks that have a certain probability of occurring in the future. So they're taking steps to sort of reduce the risks that you will have a serious spread of infection, you’ll have high death rates. But you have a cost, and I think people are failing to focus on that as well. You have shut down the two largest state in the country. You’ve basically shut down all air travel in the country. Some people are saying we’re going to see a 20 percent drop in economic activity if not more in this quarter and maybe the next quarter.

 

      And this is for people who are concerned about inequality or in this society this is going to fall heaviest on people in the lowest income brackets. There’s a real immediate cost to these steps. And everything in government’s a tradeoff. It’s not -- one can’t pretend, “Oh, we’re going to take these measures and there’s no cost.” Not just inconveniences to us, but people who depend on paycheck to paycheck are really going to suffer here.      And giving $1,000 to every adult American is not going to solve it. It might ameliorate it, but it’s not going to solve it.

 

      But that’s why we put these people in office. I think they should be more transparent in how they reach the decisions and what tradeoffs they considered when they decided to essentially force everyone in New York and California into their homes.

 

John G. Malcolm:  Those tradeoffs may change as time moves on.

 

Prof. John C. Yoo:  Yeah, they may well be wrong. I mean, you can look at different countries. South Korea, which has really turned the corner and has done really an incredible job containing and reducing the infection rates and has quite low death rates, far lower than what you’re seeing in Italy, for example, did not do nationwide shut down. They shut down essentially one city, not even the major city of Seoul. But we can learn from the examples of other countries when we make these choices.

 

      So Dean, why don’t we turn it over to you to manage questions and answers? I’m sure we’ve got a lot of them. --

 

Dean Reuter:  Very good. Thank you, gentlemen.

 

Prof. John C. Yoo:  -- Questions, not necessarily answers.

 

Dean Reuter:  While we’re waiting to see who weighs in with a question, let me mention that John Malcolm is the author of an article, I guess it hit today or yesterday, in the Daily Signal on many of these same issues. John, you mentioned his book Crisis in Command but he’s got an upcoming book, Defender in Chief, Donald Trump’s Fight for Presidential Power. That’s coming out late July, Defender in Chief, by John Yoo.

 

      Looks like we’ve got a ton of questions for our guests today. We’ve got well over 200 people on the call so we’ll get to as many of you as possible. With that, let’s check in with our first caller.

 

Mike Daugherty:  Good afternoon. Mike Daugherty here. So my questions about property rights. I happen to have several beachfront properties in Florida. And the pictures of spring break has spread pandemonium so that DeSantis felt like all of Florida was at spring break. And so about two hours ago I got notice that not just the public beaches but the private beaches are closed so that if you have a private beach that is deeded to your property, evidently you can’t go out on it.

 

      Now we’re all rushing the judgment and everything that you push back on is interpreted as if you don’t care about public health. But as far as constitutional property rights go and taking away your private access to something like that, I don't know if you have any thoughts about that.

 

Prof. John C. Yoo:  Yeah, I do actually. I think this is a really interesting question. I should note for the record that I’m on the board of the Pacific Legal Foundation, which is one of the major, if not the major public interest law firm that pursues takings cases. It’s interesting the Takings Clause would not require compensation, for example, if you had to close the beaches as a hurricane approached, or if you, for the example that we often use in school is there’s homes along a fire. You have to destroy the homes to stop the spread of the fire. Part of the idea, I think, behind that is -- oh, another example. This actually went to the Supreme Court. The U.S. forces are retreating in war and they destroy private property to prevent it from falling into the hands of their enemy. The idea is that this property would’ve lost anyway and balanced against a need to stop the disaster from spreading or even occurring, you’re not really owed compensation.

 

      I think you're asking a really good question, Michael, because this is different. An epidemic is different than a localized geographic event. That’s why, in part, the President and some of the powers are talking about sending in troops or quarantining a city. It doesn’t apply anymore because the epidemic has spread so far. So it’s a question that I think is unresolved and could generate litigation. Can the state shut down businesses? Can it stop you from access your property? Because of not anything those businesses or places themselves did. They're not on the front lines of anything. But it’s because people might go there and come into contact with other people and spread the disease.

 

      On the other end of the Takings spectrum, there’s cases that say if the government in the middle of a crisis or epidemic commandeers your property—for example, if you’re a hotel owner -- and this is something that California is starting to do apparently and ghosted -- Newsom goes to the Hilton and says, “I’m going to take over all of the hotel rooms and turn them into hospital beds,” the cases say the state owes compensation if it commandeers your property.

 

      So there’s this difference in the law between stopping the spread of harms on the one hand, which doesn’t get compensation, but then commandeering private property for public use and fighting the disease is a compensation. And the cases I don't think -- there’s nothing, as far as I know, at the Supreme Court that addresses the case that’s kind of in between, which is like the state is basically telling you not to use your property for this positive public purpose. There’s nothing inherently dangerous or wrong with your property.

 

John G. Malcolm:  I agree with all of that. I have very, very little to add, although there are also cases where the government will do things like flood areas temporarily to accomplish some greater purpose. And as you know, Pacific Legal Foundation has litigated these cases – your ability to get compensation under those circumstances is difficult. It depends on how regular it is and how much damage there is. At the moment, of course, filing a lawsuit, Michael, so that you can go outside and enjoy your beach would be a little bit tough because you can’t find a courthouse that’s open. But my guess is that if some point they sat there and said, “That’s it. We now no longer can have people going -- take the chance of people going on any beaches at all, we’re going to condemn this property,” then of course you would be entitled for compensation for a temporary taking. And it’d be tough.

 

Prof. John C. Yoo:  Yeah, and I think—and this goes to the forefront of some of the economic liberty cases—I think this really is harder when it’s not, say, beachfront property but people’s businesses, their livelihoods. Suppose you’re the Uber driver. Could the City of San Francisco just ban Uber in your city? Just say, “No, you're not allowed to give people rides in your car.” Or they shut down Airbnb and say, “Yes, you own your house. You rent your apartment, but you can’t have someone stay who you want to stay.” That’s where I think the cases are really unclear. There are old cases which really seem to deny any kind of economic liberty claims. But those are from the New Deal period, and I think this is going to be an era where -- if I were a state’s litigator -- maybe states should think of their own compensation systems. I think that would be a good opportunity politically for politicians to do some of it. It’d be quite popular, and actually to serve a public interest is to figure out what ways to compensate people for these draconian shutdown orders.

 

John G. Malcolm:  And that’s one of the big problems with the Takings law in general and the whole Penn Central line of cases, which is all they’ve said at the moment is you can’t go out on the beach, but they haven’t said you can’t overlook your beach and see the ocean. And so this is sort of a partial regulatory taking and unfortunately, the law, while there’ve been a couple of notable wins recently for property owners but the history of regulatory takings is not favorable for property owners.

 

Dean Reuter:  We’ve got plenty of questions left.

 

Caller 2:  It seems that the policy of lockdown supposedly works for everyone except prison inmates, who, in California at least, are being released due to fears of coronavirus in the prisons. I don't know if you’ve touched on that but it seems that that is another way that the law is being suspended and probably to the detriment of public safety if not the spread of the virus itself. I wondered if you could discuss that a bit.

 

John G. Malcolm:  Yeah, so it depends on what you mean by public safety. And so, obviously, if you are releasing prisoners, particularly violent felons, then that certainly can be a danger to public safety.

 

      On the other hand, you could end up turning prisons into a germ cesspool that would spread the disease. And it’s not just the prisoners but obviously all of the personnel who are guarding the prisoners and prison staff that are involved. Prisoners do have -- they lose certain rights, obviously, by being in prison, but they do have an Eighth Amendment right to have their basic healthcare needs tended to. And they can’t be willfully ignored.

 

      I haven’t really looked into the issue very much, but I do know that there are some states that are very concerned about this and starting to find other accommodations for prisoners – home confinement for ones that are perhaps non-violent offenses. I know that some are urging for an expansion of the Compassionate Release Program, particularly because it’s the elderly prisoners who are the most vulnerable to COVID-19. Prisoners have some rights too, including the rights to basic health provisions since they can’t do anything to help themselves in that regard.

 

Dean Reuter:  John Yoo, anything on this point?

 

Prof. John C. Yoo:  I don't have a lot more to add, although I just would flag another public safety/criminal law issue, which is how do we deal with the homeless because if the prisons are going to be one area we could see rapid transmission of the virus, I would expect you would also, if it’s not already occurring, you would see that with the homeless population. And I think one area that California probably really isn’t ready for is not just the release of non-violent prisoners from the prisons but what to do about the homeless who have already been a big problem with public safety and order before the pandemic appeared. Which really magnified the harm that occurred to the community.

     

      I think that San Francisco, LA, California, New York are going to have to really rethink their hands-off policy to the homeless and also their hands-off policy towards a lot of the property crime. You're talking about a large population that’s not going to be obeying the quarantine orders, that aren’t going to -- that could easily spread the disease.

 

John G. Malcolm:  Right. I mean, you already had talk of Bubonic Plague, literally the Bubonic Plague which was rat driven happening in parts of downtown Los Angeles, and this is obviously a population that has severely compromised immune systems to begin with.

 

Dean Reuter:  It also raises the question—this is Dean—of is there a reset button at the end of this? And do we go back to preexisting standards, or have we lost something or gained something in the process. But with that, let’s turn to our next caller for another question.

 

Rob Henneke:  Hi, this is Rob Henneke, the Texas Public Policy Foundation. Thank you, again, for a good discussion. My question is so in the context of the reg. reform that this president has been doing, I was wondering if you all thought that the time of emergency gave the President any kind of basis through executive order or any of these other statutes to, essentially, bypass the APA for some of the things that the President has attempted to do, specifically in terms of healthcare, some of the healthcare regulations that have been challenged in court, mostly through the APA standard. Or other things that the President might have the authority to do in advancing faster, a reg. reform agenda to sort of restart the economy at some point?

 

Prof. John C. Yoo:  I was thinking about this because of the economic debate, really, about what’s the best thing to do now at the federal level. You have the discussion of just giving out stimulus checks. I'm not sure the evidence shows stimulus checks are that effective. We saw them before. They seem to be just temporary -- temporarily increase maybe consumption. But then things go back to the way they were before plus you have a much bigger deficit.

 

      And so it seems to me that the things the government could do that could lay the foundations for a better economic recovery would be some kind of tax cut and deregulatory environment so that when these lockdowns get lifted, businesses can accelerate their return and not have to worry about complying with all of the red tape that is already starting affect innovation in the country. And so it seems to me that some of the emergency powers that are granted by statute allow the President to do that. As you say, we already see small parts of that here and there, for example, with the trying to fast track different vaccines and cures so that they go through the FDA approval process faster.

 

      There’ve been proposals, which I think are not bad proposals, to allow states to do that as well, especially when it comes to testing kits and so on. I think a forward looking president could try to adopt that system economy wide. And it could be statutory. Also here, President Obama set the precedent. He refused to enforce the immigration laws. He thought that the DAPP and DACA programs were his effort, I think, to really fundamentally change immigration policy.

 

      What if President Trump were to declare, “Yes, I’d like deregulation on a statutory basis, but suppose I don’t have the statutory basis in every nook and cranny, then I'm ordering all federal agencies to halt regulatory enforcement measures for the next six months during this period so that businesses can get a head start on rejuvenating economic activity.” And the basis is not “Well, just because I disagree with the immigration laws, and I think Congress should do something it won’t. It could be because I think the public interest is better served by letting economically responsible businesses to move forward. I’m not trying to change how the market works. In fact, it would probably enhance how the market works. I’m not trying to change the debt markets or the stock markets. All I’m doing is creating a launch pad by just telling -- using my prosecutorial discretion to tell the agencies to lay off for a few months. I’d like to see people try to stop that.

 

John G. Malcolm:  I guess the only thing that I would add to that -- so it’s interesting the way you were phrasing the question, Rob, about this is something the President wanted to do anyway. It’s a chance for him to kick start that. It’s a little like a Rahm Emanuel statement about “never let a crisis go to waste.” I suppose the answer -- John’s already talked about some of this in terms of trying to push for faster regulatory approval of potential drugs or treatments for COVID-19. Some of the authorities that the President has invoked -- there are various federal statutes that under emergencies they get to waive regulations with respect to having to put out requests for proposal and consider the lowest-cost bids and all that kind of thing. The President’s already has been tested on the immigration front by largely closing the border along Mexico.

 

      Look, we’re just going to have to see how long this lasts and what people’s expectations become. So perhaps this is a silly example, perhaps it’s not – everybody is now saying, “Well, gee, we’re now all homeschooling our kids.” Well, there’re all kinds of regulations about who can homeschool and how they can homeschool. They're largely state regulations but I think as people go through this experience and realize that they may have to be doing more of it for a period of time, some of those regulations may go by the wayside. It’s hard to predict how long this is going to last and exactly how it’s going to impact people.

 

      But as impediments come up as people discover regulations that prevent them from going about living their lives the way they would like to live them, given these dire circumstances, some people may revisit some of those regulations, whether it’s healthcare or education, immigration, drug approvals, a whole slew of areas.

 

Dean Reuter:  We’ll move right ahead. Go ahead, caller.

 

Ryan:  Hi, yeah, my name is Ryan. As most of the speakers have emphasized, this time poses some great dangers for our individual liberties. And that being the case, it becomes especially important that we have means to enforce our constitutional rights. But it seems that the means of enforcement for our constitutional rights are also under threat. It’s not as easy to go to the ballot box, and I think as one of the speakers mentioned, it would be especially difficult to commence a lawsuit right now.

 

      So what sorts of policy proposals do we think would address that problem?

 

John G. Malcolm:  So the courts are trying their best to stay open, and I think they’re going to have to be innovate in their approach. I know, for instance, the D.C. Circuit has gone to having oral arguments being done over the telephone. And there are courts that are trying to adapt so that they stay open for people who have truly emergency situations or who assert these sorts of important challenges.

 

      I don't know what’s going to happen with respect to the upcoming election. The election will take place in November, I have no doubt about that. States have a large amount of control over their primaries and state elections. I don't know whether they’ll choose to amend how they -- whether there’ll be more ballot harvesting or absentee -- expansion of absentee ballots. Perhaps there will be electronic voting. Each of these potential, quote/unquote, “solutions” has the potential positives but some real potential negatives in terms of the ability to commit fraud, for instance.

 

      Fortunately, the November election is a long time away. The only thing that will come up immediately are the conventions this summer. But the conventions really have [inaudible 44.53] political theater at this point so the parties can cancel them or go to virtual conventions or do whatever. But I think that if this continues and we start getting very, very close to the November election, I think that these proposals are going to become a lot more salient.

 

Prof. John C. Yoo:  I agree with John on the importance of the political checks on what’s going on here, especially as you say the judicial check is not as strong. And as John said early on, there’s a strong record of judicial deference to the Executive and Legislative Branches during these times of crises.

 

      So let me throw some outside-the-box ideas. I completely agree with the standard approach that John mentioned with the ballot box, going to Congress for oversight, going to state legislatures for oversight. Look at federalism. If there are states that are pursing less strict lockdown measures, perhaps those are going to be successful. Businesses in the future, residents in the future may move to those states because they might have more clear-headed government. Suppose California and New York have panicked and overreacted. Suppose other states like, I don't know, maybe Texas or Louisiana or some other states—you could choose any—choose to have less strict shutdown period. Those states are going to do better in the competition over policy and the competition for businesses and residents in the future.

 

      Or go even farther. So my AEI colleague Charles Murray had this radical proposal that, at some point, the administrative state, at some point government becomes too intrusive, too micromanaging, spends too much, people will just stop obeying it. There’s a certain level of civil disobedience that goes on. I think you could see that here in California in a week. If it turns out these lockdowns are really going too far, if it turns out the state of California is making these decisions without much evidence and is not being transparent about, you could see people just starting to go back to their normal business, going to their normal lives again. There’s aren’t enough people -- there aren’t enough police officers and officers in California to force everyone to stay in their homes.

 

      America is a wonderful country for having such a belief in the rule of law and voluntary compliance with the law. Most people file their tax returns voluntarily. They don’t need the coercive arm of government to force them to do it. But the flipside of that is we have relatively small governments compared to other countries. This is not China. This is not even South Korea where there’s a lot of -- there can be a lot of state compulsion to obey state policies. If the states have gone too far, then I think you’ll see some -- it’s not the kind of breakdown in law and order that I think John mentioned could trigger federal response, but its more people on a daily level refusing to comply with what they see as irrational orders from their government. And that’s always a possibility behind this.

 

Dean Reuter:  Let’s check in now with another caller.

 

Andrew Turhune (sp):  This is Andrew Turhune speaking. I was calling because I was rather curious whether the guests had any thoughts on the silence we’ve heard from what would you consider I guess the ACLU, the general civil rights community. And it struck me that we may be looking at something that’s a little bit like Korematsu. Everybody at the time thought it was just great to intern Japanese-Americans. Now we look back on that in horror. I can just see a paraellel here.

 

Prof. John C. Yoo:  John, you’re a close student of the ACLU. [Laughter] Why don’t you explain to us why they’ve been missing in action?

 

John G. Malcolm:  With respect to Korematsu, I mean, the edicts that are being put forward apply to everybody. So you're not going to really have any kind of equal protection argument that you had with the internment of Japanese-Americans. And I think at the moment, people are shell-shocked and are just being cooperative to the extent to which they are, spring breakers notwithstanding. Because they see it in everybody’s best interest to do so. I don't know. I haven’t been following the ACLU’s web page to see whether they’ve initiated any kind of lawsuits. But a lot of these edicts are now being -- they have the threat of criminal penalties behind them, that if people start violating these rules and being criminally prosecuted, my guess is those lawsuits will begin. So these are really just early days.

 

      I mean, up until about a week ago, the only people who were being asked to self-quarantine were people who had been knowingly, who had been exposed to somebody with COVID-19. I fell into that category. The pastor at my church had COVID-19 so I spent a week and a half in my home. But now all of the sudden, people are being ordered by their governors to be at home. And I think that people will cooperate with that for a limited period of time. At the moment, people are being told let’s do it for a couple of weeks. But if all of the sudden, they said, well, now we’re going to be doing it for three or four months, I think some of those lawsuits will begin.

 

Prof. John C. Yoo:  I agree, John. I don't think you're seeing a Korematsu-type problem here and that there’s no race or ethnicity or religious distinctions to this. But I think you do make a good point about the rush to sacrifice liberties in this kind of domestic emergency. And so I wouldn’t say World War II is an example. What I would say is look at the New Deal. That’s really when we saw the evisceration of the Contracts Clause. We saw a suspension, really, for a long time of the enforcement of the Takings Clause, and the idea of economic liberties generally.

 

      So one thing I haven’t heard suggested yet but it’s going to be inevitable, I suppose, is state or the federal government suspending or imposing a moratorium contracts, like home mortgages, for example. You may remember it was really the New Deal cases that allowed, in a case called Blaisdell, that allowed the suspension of the enforcement of mortgage contracts. I’ve always found Blaisdell rather opaque and not clear on why it was okay to suspend the Contracts Clause.

 

      So this is a thing one ought to worry about is that it’s not World War II. It is we already have a good example of when this has happened before and that was the Great Depression. Now that went on for three or four years before the courts started to allow these kinds of intrusions to what, I think, had been decades of protections for economic liberties.

 

      The other thing I think John makes a very good point, which is—I think this is a point Richard Epstein has also made—is why not allow on private ordering for a little bit first rather than bring in the hand of government on all of these issues? If we want to have moratorium mortgage payments, let’s see if the mortgagers or the big banks would do that first. If you're going to ask people to quarantine, why not see if people like the John Malcolms out there who are coming into close contact with people who have the virus to quarantine themselves before we need the government to basically impose it on everybody. New York and California have already decided to bypass private ordering and just use the hand of the state. But maybe other states will see whether people will voluntarily follow guidelines of good behavior and best practices rather than being compelled to by state power.

 

John G. Malcolm:  Yeah, I think that’s right. So people are being asked to pitch in and they're all running to Congress and asking for bailouts. The situation I think changes when the bailouts do not become available and they're all of the sudden not being asked to voluntarily pitch in but are being ordered to pitch in. Then the calculus changes.

 

Dean Reuter:  Next caller, go right ahead.

 

Mary Ann McGrail:  Mary Ann McGrail. I’m an attorney in D.C. What are the overall reporting requirements for numbers and geographic location of COVID-19, and how does the dearth of testing kits gear into that?

 

John G. Malcolm:  I don't know what the reporting requirements are. You are correct that everybody is assuming that the numbers of people with COVID-19 are going to go up dramatically as testing becomes more widespread so that there are a lot of people who are either asymptomatic or have very, very mild symptoms who either don’t know they have COVID-19 or are unclear whether they have COVID-19 or just your standard flu. I don't know what the reporting requirements are. I’m sure that a lot of states are doing it on their own until we have the best information available and can deploy resources in the best possible manner.

 

Prof. John C. Yoo:  I’d have to look really quickly—I haven’t looked at it yet, but I think there is some kind of reporting requirement that going to be part of the Public Health Safety Law that we referred to earlier where the federal government, I'm sure, makes it a condition of receiving all of these federal funds that the states are accurately reporting.

 

      Just one thing on the test kits: I think that’s been one of the great failures of the federal government has been failure of producing reliable test kits. And that’s a good example, I think, of why federalism makes a lot of sense here. For some reason we had the centralization of test kit preparation in the federal government using a rather clunky bureaucracy. What federalism does is it gives you resiliency, I think. People are talking about that a lot. Resilient institutions that can survive shocks. Federalism creates a resilient system of government. I don't see why the federal government has to control the production of test kits. Why not let states also certify and allow for the quicker production of test kits.     

 

      So I think, actually, the test kit fiasco is a good example of the downsides of excessive centralization of our response.

 

Dean Reuter:  Let’s try to get in -- squeeze in one more question if we could.

 

Christopher Mellon (sp):  Thank you. This is Christopher Mellon. Thanks for hanging in. Can you comment briefly on the National Emergency Act? I’m looking on Wikipedia. There’s currently 34 national emergencies. Do you think the Act that there’s still adequate checks and balancing on the President declaring national emergencies?

 

Prof. John C. Yoo:  This is, I think, the ironic thing was that just a few months ago, you may recall, Congress was trying to pass a law to prevent President Trump from having a lot of discretion in the declaration of national emergencies. Then you had people in the very same Congress attacking him for not declaring a national emergency. I think the people in Congress have been awfully hypocritical on the issue of presidential power. And this really shows it.

 

      As Dean mentioned, I’ve got his book coming out in July, and one of the arguments I make there is that you’ve had three years of just unceasing attacks on the presidency and on executive power, everything from the things we didn’t get to today, like trying to restrict the FISA powers; trying to prevent the President from using military force in the Middle East; the Mueller Report investigation; the impeachment investigation. The presidency has been under assault for three years.

 

      And now we get to a time when everyone agrees we want to see the presidency in action. And is it any surprise that the presidency is somewhat crippled because the impeachment -- people forget that the trial was going on when the first signs of this were happening. And is it any surprise that President Trump and his aides might have been a little more focused on not getting removed from office than they were maybe on the initial signs of the pandemic.

     

      I think people should be accountable for some of the wild accusations they made against the office of the presidency and against Trump, and then calling on him to do the things a normal president would go in triggering the powers of the president.

 

      And then on the national emergencies more specifically. You may know that the National Emergencies Act itself only really regulates the calling of one. It actually doesn’t establish any standards or definitions of what a national emergency is. But that’s not the important thing. What the important thing is is the other statutes which then trigger into effect once a national emergency is declared. Those are the important laws, not the declaration of the emergency itself. And it’s really, I think we mentioned earlier, the two key statutes here are the Stafford Act and then the Public Health Service Act, which really don’t necessarily expand the President’s constitutional powers. But Congress delegates a lot of its authority over spending and a lot of its authority over interstate commerce and travel to the Executive Branch once that national emergency is declared.

 

      The last thing I would like to see with this question of too many national emergencies what some people propose is to have some judicial review over the definition -- I’m sorry, the declaration of national emergency or to have some kind of sunset timing provisions on national emergencies. For example, there have been proposals for national emergencies essentially to sunset unless Congress passes a law to reaffirm them.

 

      I think what we’re seeing here with the pandemic might be a good example of why those kinds of proposals would do more harm than good.

 

John G. Malcolm:  Yeah, a couple of things to add. So the National Emergencies Act, John’s right. You can invoke a national emergency but then you have to state what other statutory authority you're relying upon to do what it is that you want to do. President Obama, for instance, invoked the National Emergencies Act to respond to the Swine Flu epidemic. And I forget which other provisions he relied upon.

 

      So there are provisions that allow -- the declarations of national emergencies do sunset, but it’s very easy to get them revived. All the President basically has to do is say there’s still an emergency, and Congress has very limited ability to limit or cutoff that emergency. And so there were a lot of people like Senator Mike Lee from Utah who I know recently were trying to come up with ways to tailor or curtail the president’s authority under the National Emergency Act. They went nowhere.

 

      John also mentioned FISA and the impeachment proceedings. I mean, the rest of the world is still going on. So for instance, while all of this is going on, four provisions of FISA have now expired. They expired on March 15th. The House has passed a reauthorization for three of those four provisions, but they had new conditions that were going to apply to all of FISA. The Senate took up that bill. They did not adopt any of the FISA amendments that the House wanted to do. They just passed the 77-day clean reauthorization. So while all of this is going on, the House and Senate are still going to have to negotiate over the reauthorization of these four FISA provisions. But in the meantime, those provisions are gone now. So our ability to conduct foreign intelligence and foreign terrorist investigations has been somewhat limited.

 

Dean Reuter:  Well, gentlemen, my thanks for John Malcolm and John Yoo for joining us today. A reminder for more on this same topic, John Malcolm is the author of an article in the Daily Signal. And John Yoo, you mentioned your book Crisis and Command. The upcoming book Defender in Chief: Donald Trump’s Fight for Presidential Power, due out in July, but available for pre-order now on Amazon.com and other online bookstores.

 

      So gentlemen, thank you again. To our audience, thank you as well for dialing in. A reminder to keep an eye out for emails announcing upcoming teleforum conference calls and check The Federalist Society’s website. As an institution, I think we’ll be doing more rather than fewer of these calls in the coming weeks. But until that next call, we are adjourned. Thank you very much, everyone.

 

Operator:  Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at fedsoc.org/multimedia.